The Georgia Supreme Court has wiped the felony murder conviction and life sentence imposed against a man involved in a fatal shooting, finding his lawyer was ineffective at trial.
In a unanimous opinion issued Tuesday, the court also reversed Darnell Floyd’s convictions and sentences on two associated gun possession charges in the 2017 shooting death of Telmo Ortiz in Covington. Floyd’s related convictions and sentences for single counts of fleeing police and cruelty to children in the third degree remain untouched.
The court said Floyd’s attorney during a 2019 trial failed to tell the jury that he should be acquitted of the felony murder charge if they believed he was acting in self defense when he shot Ortiz. Floyd’s trial lawyer, W. Scott Smith, also didn’t object to the trial judge’s questionable response to a jury inquiry, records show.
“Trial counsel did not explain that (Floyd) was justified in possessing the gun at the time he shot Ortiz if (Floyd) was acting in self defense,” the court said.
Floyd, 38, can be retried, the court held.
Smith said the court’s ruling is a “great result” for Floyd, who has been in custody since his indictment in December 2017. He said there was confusion at the time of trial about a Georgia self-defense law and whether it absolved Floyd – a convicted felon – of possessing a gun when acting in self defense.
The court’s opinion clarifies that a convicted felon can lawfully possess a gun in self defense, Smith said Wednesday. He said he’ll seek bond for Floyd, who has completed the sentences not overturned.
“I’m hoping that the prosecution will do the right thing and dismiss this case or offer him a time-served plea,” Smith told The Atlanta Journal-Constitution.
The shooting occurred on Washington Street in Newton County in September 2017. Floyd testified at trial that he shot Ortiz in self defense after Ortiz reached for a handgun he had placed in the waistband of his shorts.
The two men, who had been involved in a prior altercation, were discussing a stolen cellphone, case records show. After shooting Ortiz, Floyd fled the scene in his vehicle with a friend and her child. He was apprehended in possession of three guns, including an AR-15 rifle.
A Washington Street resident who heard the shooting testified that he approached the scene before law enforcement officers arrived and noticed that Ortiz was lying next to a handgun. A responding officer later cleared a bullet from the chamber of the gun, the court noted.
Floyd was found guilty of felony murder predicated on his possession of a gun as a convicted felon. The jury also found him guilty of two associated gun possession charges and single counts of fleeing police and child cruelty. He was acquitted on several other charges, including malice murder, attempted armed robbery, aggravated assault and kidnapping.
In its opinion Tuesday, the state Supreme Court said there was sufficient evidence to support the jury’s verdict, but that Floyd’s counsel during trial was ineffective in several ways, warranting the reversal.
The crux of the problem was Smith’s confusion about the Georgia self-defense law and whether it absolved Floyd’s gun possession if the jury found he acted in self defense, the court noted. It said Smith didn’t object to the trial judge’s problematic response to a jury question about a convicted felon’s right to use a firearm in self defense.
Writing for the court, Chief Justice Michael P. Boggs said the judge’s response to the jury “at best was a nonanswer, and at worst, authorized the jury to convict on felony murder based on felon-in-possession even if it believed (Floyd’s) claim of self defense.” The Newton County trial judge, Eugene M. Benton, told the jurors it was up to them to decide if self defense at all costs took precedence over a felon possessing a weapon to defend himself, records show.
“Especially given that self defense was (Floyd’s) sole defense to felony murder based on felon-in-possession, we conclude that no reasonable attorney would have agreed with the trial court’s response,” Boggs wrote. “The jury was confused by the concession that (Floyd) was a convicted felon and not permitted to possess a gun and the claim that he was justified in using a gun in self defense.”
In a concurring opinion, Justice Shawn Ellen LaGrua said the jury’s confusion is understandable and that state legislators may want to clarify the self defense law.
“I question whether (the law) was intended to protect felons who intentionally arm themselves and then use those weapons in situations like this,” she wrote.
Kyle Winchester, who represented Floyd on appeal, said the ruling “shows the court’s commitment to ensuring fairness in trial procedure and accuracy in jury verdicts.” He said Floyd has several defenses if retried.
“The Floyd opinion is an important exhibition of complex issues that can unfold in a self-defense case,” Winchester told the AJC. “We hope this precedent can be a beneficial guidepost for lawyers and trial courts that encounter these legal issues in future Georgia trials.”
Alcovy Judicial Circuit District Attorney Randy McGinley, who helped prosecute the case, did not immediately respond to questions about the ruling.
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